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ELCAllowedNot stated in the judgment· [2022] KEELC 418 (KLR)

Apollo Insurance Limited v Khatib Abdalla Mwashetani & 4 others [2022] KEELC 418 (KLR)

Environment and Land Court
2 February 2022
2,881 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kwale court blocked all land dealings after discovering two conflicting title records for the same property, protecting the earlier owner pending a full hearing.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kwale (A.E. Dena, J) on a Notice of Motion dated 16 July 2021 by the Petitioner, Apollo Insurance Company Limited, seeking a temporary injunction restraining the Respondents from alienating, disposing of, selling or dealing with land parcel Kwale/Shimoni Adj/319 pending the hearing of the petition. The Petitioner claimed to have purchased the property in 1994 for Kshs 600,000 and to hold a title deed issued on 2 May 2002, but later discovered a parallel green card showing the 3rd Respondent as registered owner with a title issued on 11 April 2016, subsequently transferred to the 1st and 2nd Respondents. The 1st and 2nd Respondents asserted they were bona fide purchasers for value without notice after due diligence. The application was canvassed by written submissions; the 1st and 2nd Respondents filed none, and the State Respondents did not participate. Applying the Giella v Cassman Brown conditions, the court found a prima facie case on the ground that the Petitioner's title preceded the Respondents', with a full documentary history of acquisition exhibited. It found a demonstrated risk of irreparable loss given two contradictory green cards and the possibility of further dealings, and held the balance of convenience favoured the Applicant, who was in possession and first in time, and whose position required protection of the register's integrity. The court issued a temporary injunction restraining all dealings with the suit property pending determination of the petition, with costs to follow the event.

Key legal issues

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01

Prima facie case

Holding

The Applicant established a prima facie case: its title was issued years earlier than the 1st and 2nd Respondents' title, and a full documentary history of acquisition was presented

Reasoning

The Applicant exhibited the sale agreement, 1994 transfer, rates clearance certificate and the title deed issued on 2/5/2002, and explained the time lapse between transfer and issuance of title. The Respondents' competing title was issued in 2016. An apparently infringed right existed calling for explanation or rebuttal from the Respondents, satisfying the Mrao definition.

p. 3
02

Irreparable injury

Holding

The Applicant demonstrated a risk of irreparable loss, namely the imminent loss of the land to third parties given the existence of two contradictory green cards

Reasoning

The Applicant had never transferred the property, yet two green cards with contradicting ownership information existed, raising a real apprehension of further dealings. Following Nguruman, the nature and extent of the injury were disclosed and demonstrated; the loss of land is not adequately compensable by damages.

p. 4
03

Balance of convenience

Holding

The balance of convenience tilts towards granting the injunction, since the Applicant's title was first in time, it is in possession, and the register's integrity requires protection

Reasoning

The Applicant's title preceded the Respondents' and it retains possession under a permanent wall. The contradictory green cards raise apprehension that the register could be further compromised; preserving the status quo pending full hearing is the more convenient course and prevents further muddling of the dispute.

p. 4

Legal principles established

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  • A prima facie case is a genuine and arguable case in which, on the material presented, the court concludes there exists a right apparently infringed so as to call for an explanation or rebuttal from the opposite party
  • An applicant for an injunction must make full and frank disclosure of all relevant facts and show a right, legal or equitable, requiring protection by injunction
  • Where two contradictory green cards exist over the same parcel, the integrity of the register may be further compromised and interlocutory injunctive protection is warranted

Court orders

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  1. 1.Pending the hearing and determination of the Petition, a temporary order of injunction issued restraining the Respondents by themselves, employees, servants and/or agents from alienating, disposing of, selling, interfering with and/or dealing in any manner whatsoever with the suit parcel of land known as Land Reference No. Kwale/Shimoni Adj/319
  2. 2.Costs shall follow the event

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 11(a) & 4
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 40(1)(a) and (b)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Environment and Land Court Act No. 19 of 2011Section 13
  • Constitution of Kenya, 2010Article 40(1)
  • Constitution of Kenya, 2010Article 40(6)
  • Land Registration Act 2012Section 26

Cases cited (8)

  • Evelyn College of Design V Director Of Children's Department & Another
    [2013] eKLR
  • Giella V Cassman Brown Ltd
    [1973] EA 358
  • Mrao V First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
  • Pius Kipchirchir Kogo V Frank Kimeli Tenai
    [2018] eKLR
  • Paul Gitonga Wanjau V Gathuthis Tea Factory Company Ltd & 2 Others
    [2016] eKLR
  • Moses C. Muhia Njoroge & 2 others vs Jane W Lesaloi and 5 others
    (2014) eKLR
  • Kenleb Construction Ltd vs New Gatitu Service Station Ltd & another
    (1990) eKLR
  • Nguruman Ltd v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 11(a) & 4 and Order 51 Rule 1 of the Civil Procedure Rules 2020; Section 13 of the Environment and Land Court Act No. 19 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Apollo Insurance Limited v Khatib Abdalla Mwashetani & 4 others [2022] KEELC 418 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/418/eng@2022-02-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.